Mamorero Mpobole V Tahleho Mpobole & 5 Others (C of A (CIV) No.40/2025) [2025] LSCA 64 (7 November 2025)

# Mamorero Mpobole V Tahleho Mpobole & 5 Others (C of A (CIV) No.40/2025) [2025] LSCA 64 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/64/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/64/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/64/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/64/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Mamorero Mpobole V Tahleho Mpobole & 5 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/64/eng@2025-11-07) [ Download PDF (202.1 KB) ](/akn/ls/judgment/lsca/2025/64/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (202.1 KB) ](/akn/ls/judgment/lsca/2025/64/eng@2025-11-07/source) * * * * * Report a problem __ ##### Mamorero Mpobole V Tahleho Mpobole & 5 Others (C of A (CIV) No.40/2025) [2025] LSCA 64 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Mamorero Mpobole V Tahleho Mpobole & 5 Others (C of A (CIV) No.40/2025) [2025] LSCA 64 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 64 Copy Hearing date 14 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.40/2025 Judges [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Family Law](/taxonomy/case-indexes/case-indexes-commercial-family-law) Summary ###### Flynote Family law – Custody of children – Best interests of the child – Paramountcy principle – Litigation delays and procedural irregularities – Appeal struck off by consent owing to defective and confused record – Duty of practitioners to conduct custody litigation with diligence and clarity. Procedure – Appeals – Leave to appeal – Defective and incomplete record – Confusion as to judgment appealed against – Grounds of appeal unrelated to impugned order – Effect of sloppy litigation on administration of justice. Practice and conduct – Role of lawyers and adjudicators – The best interests of the child as a guiding principle – Paramountcy of children’s welfare does not excuse procedural negligence – Importance of disciplined, responsible and coherent advocacy in family disputes. Read full summary * * * Skip to document content ###### Flynote Family law – Custody of children – Best interests of the child – Paramountcy principle – Litigation delays and procedural irregularities – Appeal struck off by consent owing to defective and confused record – Duty of practitioners to conduct custody litigation with diligence and clarity. Procedure – Appeals – Leave to appeal – Defective and incomplete record – Confusion as to judgment appealed against – Grounds of appeal unrelated to impugned order – Effect of sloppy litigation on administration of justice. Practice and conduct – Role of lawyers and adjudicators – The best interests of the child as a guiding principle – Paramountcy of children’s welfare does not excuse procedural negligence – Importance of disciplined, responsible and coherent advocacy in family disputes. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) 40/2025 CIV/APN/0198/2024 In the matter between - ‘MAMORERO MPOBOLE APPELLANT and TAHLEHO MPOBOLE 1ST RESPONDENT HER WORSHIP MAGISTRATE RANTARA 2ND RESPONDENT CLERK OF COURT FOR QUTHING MAGISTRATE COURT 3RD RESPONDENT OFFICER COMMANDING MT MOOROSI POLICE 4TH RESPONDENT COMMISSIONER OF POLICE 5TH RESPONDENT ATTORNEY GENERAL 6TH RESPONDENT CORAM: DAMASEB, AJA VAN DER WESTHUIZEN, AJA MATHABA, AJA HEARD: 14 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Family law – Custody of children – Best interests of the child – Paramountcy principle – Litigation delays and procedural irregularities – Appeal struck off by consent owing to defective and confused record – Duty of practitioners to conduct custody litigation with diligence and clarity. Procedure – Appeals – Leave to appeal – Defective and incomplete record – Confusion as to judgment appealed against – Grounds of appeal unrelated to impugned order – Effect of sloppy litigation on administration of justice. Practice and conduct – Role of lawyers and adjudicators – The best interests of the child as a guiding principle – Paramountcy of children’s welfare does not excuse procedural negligence – Importance of disciplined, responsible and coherent advocacy in family disputes. Held: 1. The best interests of the child must remain paramount in all custody proceedings. 2. Procedural irregularities, omissions, and defective records seriously undermine the administration of justice and ultimately prejudice the children whose welfare is at stake. 3. The leniency shown in granting leave to appeal does not entitle parties to ongoing sloppiness or disregard of procedural rules. 4. Appeals conducted in such a confused and careless manner are unacceptable, particularly in matters involving children’s welfare. 5. Appeal struck off the roll by consent, without costs. JUDGMENT VAN DER WESTHUIZEN Introduction [1] The best interests of the child are of paramount importance. [2] It is trite that this has been recognised in numerous judgments by courts in several countries. Section 28(2) of the Constitution of South Africa is an example of explicit constitutional protection. It should be foremost in the minds of adjudicators, lawyers and – indeed - parents. [3] Therefore it is unfortunate – and perhaps shameful - that an appeal regarding a dispute about the custody of children is struck off the roll two and a half years after the commencement of legal proceedings, because of sloppy litigation. [4] By consent between the parties, this appeal was struck off. Brief reasons for this step follow. Litigation history [5] After the initiation of proceedings in the Magistrate’s Court, the matter came before Makara J in the High Court. This culminated in a default judgment against the first respondent, the father of the two children at the centre of this battle between their parents. On 12 December 2024 Makara J ordered in the High Court: “1 The default judgment on the 13thNovember 2024 is rescinded. 2 The status quo ante reverts in that the trial court’s judgment stands as it is. 3 The matter is postponed to the 02nd June 2025.” [6] On 3 March 2025, Makara J ruled: “[1] Today’s sitting was scheduled for the consideration of the deed of settlement to be presented before the Court by the parties…. Unfortunately and unexpectedly, it emerged today that the parties have failed to settle the impasse. This is very disturbing … It appears that the good intention by the Court is being frustrated by the selfishism and unreasonable belligerence of the parties to the detriment of their children…it is ordered that the parties should submit themselves before the Mediator of the Court.” [7] The appellant approached this Court on appeal. She failed to follow the legally prescribed proceedings regarding the necessary leave to appeal. [8] At a special session on 25 July 2025 an application for leave to appeal was heard by Mosito P. On 30 July 2025 leave was granted, backed up by a judgment of 31 paragraphs. Problems [9] The record made available to judges on the bench of this Court did not include the judgment and order of Mosito P. This resulted in considerable and time-consuming confusion regarding the question of leave to appeal. It furthermore hampered this Court’s preparation for this appeal. Unconvincing explanations were given from the Bar. During the hearing copies of the judgment were handed up by the Registrar. [10] This was not the end of the problems in this litigation though. Much of the first respondent’s heads of argument, dated 18th September 2025, is devoted to arguments regarding the leave to appeal. As indicated above, this matter was settled by the order of Mosito P of 30 July 2025. Of course, the appellant is not to blame for this, but it is an example of sloppy and perhaps lazy litigation. [11] The appellant’s heads of argument, filed on 16 July 2025, states: “This is an appeal against the order and Ruling of the High Court delivered by His Lordship Justice Makara on 12th December and on 3 March 2025 …” [12] Then, the heads conclude with the prayer to “(s)et aside the High Court judgment of 3rd March 2025”. The desired fate of the judgment of 12 December is not clear. [13] According to the appellant’s Notice of Appeal, dated 7 April 2025 (received by the Registrars of the High Court and of this Court) “the Appellant being dissatisfied with the judgment of His Lordship Makara … delivered on the 3rd Day of March 2025 hereby notes an appeal against the said judgment to the Court of Appeal on the grounds annexed hereto”. [14] However, the annexed Grounds of Appeal have little or nothing to do with the judgment of 3 March 2025. As indicated above in [6], on 3 March Makara J ordered the parties to “submit themselves before the Mediator of the Court”. [15] Instead, the Grounds seem to deal with the judgment of 12 December 2024. [16] In Ground 1 it is submitted: “The learned Judge erred … by failing to conduct a proper inquiry into the best interests of the children before granting rescission and reinstating the status quo.” [17] Ground 2 states: “The learned Judge misdirected himself by granting rescission without evaluating whether the initial order was properly made in the best interests of the children.” [18] The third Ground submits: “The decision to revert to the pre-existing status quo without a hearing on the welfare of the children constitutes a gross misdirection …” [19] Ground 4 even moves away from the 12 December judgment: “The court misdirected itself by upholding a technical jurisdictional challenge (that the Quthing Children’s Court sat as a Magistrate’s Court) without considering whether this had a material impact on the merits of the custody dispute.” [20] In the midst of all the above, the fifth and last Ground seems quite lost:” The learned Judge erred in ruling that the 2ndJune 2025 hearing date was a mistake, thereby depriving the Appellant of an opportunity to fully present her case.” [21] The above leaves one confused about what the appeal is against and about. It is unacceptable to approach this Court in such a manner, especially when dealing with the best interests of children. Best interests of the child versus law and procedure [22] The paramount importance of the best interests of the child is emphasised in [1] and [2] above. [23] Counsel for the appellant relied on Mafaufau v Mafaufau1, in which the High Court of Lesotho reaffirmed that decisions affecting custody should not be made mechanically or based on formal procedure. The appellant also referred to the South African Constitutional Court case of Centre for Child Law v Minister of Justice and Constitutional Development2 (2009 (6) SA 632 (CC), where it was emphasized that in the face of procedural defects courts must not ignore the impact of orders on the lives of children. 1 CIV CIV/APN/192/2018 2 2009 (6) SA 632 (CC) [24] In paragraph [30] of the judgment of 30 July 2025 by Mosito P, referred to in [9] above, the following is stated: “While the procedural irregularities are not to be lightly disregarded, the interests of justice compel a flexible and purposive approach. The delay in filing the appeal is adequately explained. The prospects of success are reasonable. The issues raised are of sufficient importance to warrant consideration by this Court. Although leave to appeal was not formally sought in accordance with section 16(1)(b), the Court is satisfied, on a proper reading of the application, that leave should now be granted in order to avoid a miscarriage of justice.” [25] Several events have now followed the granting of leave on 30 July 2025. These are set out above. The leniency shown by Mosito P neither necessarily applies to these nor gives a carte blanche to or opens the door for ongoing sloppy and irresponsible litigation. [26] In custody battles between parents, fairness between the parties is intertwined with the best interests of the children. There are at least two sides to every such dispute. It could be argued that, especially in the interests of the children, the applicable law and related rules must be meticulously followed. Otherwise, a very dangerous precedent would be set, which would indeed harm the interests of the children in the middle of battles between emotional and often vengeful parents. Conclusion [27] After thorough debate in this Court - and as agreed by both parties - the matter was struck off the roll, without costs. _____________________________ VAN DER WESTHUIZEN ACTING JUDGE OF APPEAL I agree: _____________________________ PT DAMASEB ACTING JUDGE OF APPEAL I agree: _____________________________ AR MATHABA ACTING JUDGE OF APPEAL FOR THE APPELLANT: ADV TA CHALLA FOR THE FIRST RESPONDENT: ADV NC MAKHERA #### __Related documents ▲ To the top >